Com. v. Smith, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESMOND SMITH :
:
Appellant : No. 983 EDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010615-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 06, 2021
Appellant, Desmond Smith, appeals from the March 1, 2019 judgment
of sentence of 20 to 40 years’ incarceration, imposed after he was convicted
by a jury of rape (18 Pa.C.S. § 3121), involuntary deviate sexual intercourse
(“IDSI”) (18 Pa.C.S. § 3123), and sexual assault (18 Pa.C.S. § 3124.1). On
appeal, Appellant challenges the court’s denial of his pretrial motion to
suppress, the court’s rulings precluding him from presenting certain evidence,
and the discretionary aspects of his sentence. After careful review, we vacate
Appellant’s judgment of sentence and remand for a new trial.
The trial court summarized the facts of Appellant’s case, as follows:
On September 27, 2015, Kevin Brown, the father of complainant
[E.M.,] was killed by masked men who came to his house in
Montgomery County. [E.M.], who was a witness to the events,
gave a statement to detectives on September 28, 2015. In the
course of that statement[,] she identified Appellant as one of the
masked men who came to her family’s home and was involved in
the killing of her father. She also provided information about the
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August 22, 2015, sexual assault which was the subject of the
charges in the instant trial.
On October 2, 2015, at 6:49 a.m., Montgomery County
[H]omicide [D]etective George Henry arrested Appellant at his
home in Philadelphia, pursuant to an arrest warrant. The arrest
arose from the September 27, 2015 homicide. Appellant waived
his right to go before a judicial authority in Philadelphia and
agreed to go straight to Montgomery County. He was taken to
the Montgomery County Detective Bureau where he was
intermittently interviewed by Detective Henry over the course of
about 11 hours, starting with waiver of his Miranda[1] rights at
8:42 a.m. and concluding around 7:51 p.m.
During the course of questioning, Appellant was asked about the
murder o[n] September 27, 2015, and about the August 22, 2015,
sexual assault of [E.M]. Appellant initially denied involvement in
either the murder or the sexual assault. By the end of the
questioning, he confessed to both the murder and the sexual
assault.
Appellant and [his] co-defendant[,] Naadir Abdul-Ali[,] were tried
in Montgomery County on the homicide. Appellant presented an
alibi defense, including phone[-]tracking data and video evidence,
and was acquitted. Abdul-Ali was convicted. On the day of the
verdicts in the homicide case, [E.M.] posted on Facebook
criticizing the alibi testimony and the acquittal, expressing her
anger and insisting that Appellant was the person who killed her
father and that he was wrongfully acquitted.
At trial in this case, the Commonwealth presented evidence that
Abdul-Ali and [E.M.] were in a romantic relationship starting in the
summer of 2015. During that time period she met Appellant
through Abdul-Ali, and was in his company three or four times.
On August 22, 2015, Abdul-Ali became angry with [E.M]. While
she was in the car with him[,] he became verbally and physically
abusive.
They drove to a CVS parking lot, where Abdul-Ali continued to
physically abuse and threaten [E.M.], including putting a gun to
the back of her head and threatening to kill her. Abdul-Ali then
ordered [E.M.] to perform oral sex on him in the car, during which
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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he made a video call to Appellant and displayed [E.M.] performing
oral sex.
Abdul-Ali then drove [E.M.] to Appellant’s house to force her to
have sex with Appellant, despite her pleading and refusals. Once
they arrived, he took her into Appellant’s bedroom. Abdul-Ali
ordered [E.M.] to disrobe and perform oral sex on him and
Appellant, then to have vaginal and anal intercourse with
Appellant, during which she was forced to have vaginal intercourse
with Abdul-Ali. During the course of the incident Abdul-Ali
threatened [E.M.] with a gun and threatened or subjected her to
physical force, including forcing the gun into her mouth.
Appellant gave a statement in which he admitted to having oral,
attempted anal[,] and vaginal intercourse with [E.M.], asserting
that she had been “acting like a victim[.”]
Trial Court Opinion (TCO), 11/6/19, at 2-4 (citations to the record omitted).
Prior to Appellant’s trial for the rape of E.M., he filed a motion to
suppress his admissions to police regarding his sexual acts with E.M.
Specifically, Appellant averred that the Miranda warnings, provided at the
start of his interrogation, did not establish that he voluntarily waived his right
to counsel and to remain silent regarding E.M.’s sexual-assault allegations.
He reasoned that the Miranda warnings, given in the morning, were too far
removed from his inculpatory statements provided in the evening. Appellant
also averred that the warnings were insufficient because they only informed
him of his rights in connection to the homicide charges, and made no mention
of E.M.’s sex-offense allegations. On December 20, 2017, a suppression
hearing was conducted, at the close of which the court denied Appellant’s
motion to suppress his statements to police.
Also prior to trial, the Commonwealth filed a motion to preclude
Appellant from admitting evidence that his inculpatory statements to police
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were coerced and false. Specifically, Appellant wished to admit alibi evidence
presented at his homicide trial — namely, surveillance video from SEPTA, and
cell phone location data — to show that his confession to being at the scene
of the murder was false. Appellant reasoned that the homicide alibi evidence
would show “that if the homicide portion of the confession was patently
unreliable, then the portions relating to the sexual assault [were] likewise
questionable[,] since they were taken on the same day, during the same
interrogation, by the same detectives.” Appellant’s Brief at 18. The trial court
ultimately granted the Commonwealth’s motion to preclude this evidence.
In a third, pre-trial evidentiary ruling, the court denied Appellant’s
request to be permitted “to present evidence, in the form of social media
posts, that E.M. had a motive or bias to fabricate allegations against
[Appellant] — or question E.M. regarding the same — at the trial in the matter
sub judice.” Id. The trial court denied Appellant’s motion to admit this
evidence.
Appellant and Abdul-Ali were tried together before a jury in December
of 2018. At the close of trial, Appellant was convicted of the above-stated
crimes. On March 1, 2019, the court sentenced him to two, consecutive terms
of 10 to 20 years’ incarceration for rape and IDSI. His offense of sexual
assault merged for sentencing purposes. Thus, Appellant’s aggregate
sentence is 20 to 40 years’ incarceration. Appellant filed a timely post-
sentence motion, which the court denied. He thereafter filed a timely notice
of appeal, and he also complied with the trial court’s order to file a Pa.R.A.P.
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1925(b) concise statement of errors complained of on appeal. The court filed
a Rule 1925(a) opinion on November 6, 2019.
Herein, Appellant states four issues for our review, which we reorder for
ease of disposition:
[I.] Did the trial court err and/or abuse its discretion when it
precluded evidence of a social media ([F]acebook) post made by
complainant in which she exhibited extreme animosity toward
[A]ppellant and dissatisfaction with his acquittal in a prior criminal
case involving complainant, as that evidence is relevant to
complainant’s bias, motive to fabricate allegations against
defendant, and credibility generally?
[II.] Did the trial court err and/or abuse its discretion when it
denied [A]ppellant’s pre-trial motion to suppress a statement
made to police investigators where: [A]ppellant waived his
Miranda rights and provided a statement when police informed
him that he was being charged with homicide; and, [A]ppellant
was not re-advised of his Miranda rights, and did not waive those
rights knowingly, intelligently, and voluntarily, when several hours
later police began to question defendant about a separate sexual
assault occurring on a different date than the homicide in a
different jurisdiction?
[III.] Did the trial court err and/or abuse its discretion when it
precluded evidence that relates directly to the reliability (or lack
thereof) of inculpatory statements made by [Appellant] during a
police interrogation where the Commonwealth presented — and
heavily relied upon — evidence of [Appellant’s] inculpatory
statements regarding the sexual assault at trial?
[IV.] Is the sentence imposed unduly harsh and excessive?
Appellant’s Brief at 6-7.
Appellant first challenges the trial court’s ruling to preclude evidence of
a Facebook post that E.M. made after Appellant was acquitted of the murder
of her father. Initially, we observe that,
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[t]he standard of review employed when faced with a challenge to
the trial court’s decision as to whether or not to admit evidence is
well settled. Questions concerning the admissibility of evidence
lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court’s decision absent a clear abuse
of discretion. Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations
omitted).
In the Facebook post sought to be admitted by Appellant, E.M. made
disparaging remarks about Appellant, and insisted that he was guilty of
murdering her father, despite his acquittal for that crime. See TCO at 6
(quoting N.T. Trial, 12/18/18, at 15-16). Appellant wished to admit E.M.’s
Facebook post to show that she had a motive to fabricate her sexual-assault
allegations against him, in that she “sought to punish [Appellant] for her
father’s murder[,] notwithstanding the jury’s verdict….” Appellant’s Brief at
47. The trial court denied Appellant’s motion to admit E.M.’s post. It provides
the following rationale for its decision in its opinion:
The court concluded that the posting lacked relevance and might
lead to jury confusion. Since [E.M.] reported the rape before
Appellant was acquitted of her father’s murder, Appellant’s
argument that the post was necessary to show bias or motive to
fabricate is unpersuasive. Thus, her expressive disagreement
with the verdict or possible factual determinations in that case
offered no probative value to the instant trial. Accordingly, the
court properly excluded the posting as not relevant.
Assuming, arguendo, that evidence of the post had any probative
value, it would be far outweighed by the risk of this trial being
subsumed by the alleged events of Appellant’s murder trial.
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Appellant sought to import factual issues and assertions that
pertained only to the murder case, and hopefully to also influence
the jury to adopt its outcome. By contrast, the court sought to
have this case tried on its own merits, and [to] prevent it from
becoming a retrial of the homicide case. No curative instructions
would have been sufficient to safeguard this case from undue jury
confusion and prejudice.3 Accordingly, the court properly
concluded that the contents of the posting were far more
prejudicial than probative.
3The expletives used in that post, while irrelevant, would
have served only to inflame the jury.
For whatever reason, the defense elected not to ask [E.M.] about
her feelings regarding the acquittal, an area of inquiry which the
court did permit, and to which the Commonwealth had agreed.
N.T.[,] 12/18/18, [at] 19-20. Such exploration would have
accomplished Appellant’s goal of eliciting that testimony, without
introducing the details of the post or the homicide trial. Of course,
if the complainant’s responses to such questioning contradicted
her prior expressions in the post, then the court could and would
have reconsidered its ruling on impeachment grounds.
TCO at 6-7.
Based on the rationale set forth by the trial court, we discern no abuse
of discretion in its pre-trial ruling to preclude E.M.’s Facebook post. Therefore,
Appellant’s first issue is meritless.
Next, Appellant challenges the court’s pre-trial ruling denying his motion
to suppress the inculpatory statements he made to police during his
interrogation on November 2, 2015. Appellant insists that his statements
were involuntary because he was arrested and provided with Miranda
warnings pertaining only to the murder of E.M.’s father. At no point did the
interrogating detectives advise Appellant that his statements could be used
against him in prosecuting the sexual assault crimes, yet the detectives
questioned him about those offenses. Appellant also argues that the Miranda
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warnings, provided at 8:25 a.m., were too far removed from his confession
regarding the sexual assault of E.M., provided at or after 5:40 p.m., to
establish that his statement was voluntarily, intelligently, and knowingly
given.
We begin by recognizing:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned
up).
In addition, our Court has explained:
A confession obtained during a custodial interrogation is
admissible where the accused’s right to remain silent and right to
counsel have been explained and the accused has knowingly and
voluntarily waived those rights. The test for determining the
voluntariness of a confession and whether an accused knowingly
waived his or her rights looks to the totality of the circumstances
surrounding the giving of the confession. The Commonwealth
bears the burden of establishing whether a defendant knowingly
and voluntarily waived his Miranda rights.
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When deciding a motion to suppress a confession, the touchstone
inquiry is whether the confession was voluntary. Voluntariness is
determined from the totality of the circumstances surrounding the
confession. The question of voluntariness is not whether the
defendant would have confessed without interrogation, but
whether the interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free and
unconstrained decision to confess. The Commonwealth has the
burden of proving by a preponderance of the evidence that the
defendant confessed voluntarily.
Commonwealth v. Harrell, 65 A.3d 420, 433–34 (Pa. Super. 2013) (cleaned
up).
Here, at the suppression hearing, the Commonwealth presented the
testimony of Detective Henry. N.T. Hearing, 12/20/17, at 4. He testified that
on November 2, 2015, he executed a warrant for Appellant’s arrest for the
homicide of E.M.’s father. Id. at 5. Appellant was taken into custody at his
home in Philadelphia at 6:49 a.m., and was advised that he was being arrested
for the homicide. Id. at 5, 8. Appellant was then transported to the
Montgomery County Detective Bureau. Id. at 6. Once there, he was given
Miranda warnings at approximately 8:25 a.m. Id. at 9. The Miranda
warnings were set forth on a written form, which stated that Appellant was
being investigated for homicide. Id. at 7. He was at no point notified, on the
written form or verbally by Detective Henry, that he was also suspected of
sexually assaulting of E.M. Id. Appellant signed the waiver form. Id. at 11.
Between 9:27 a.m. and 10:56 a.m., Detective Henry recorded a formal
statement by Appellant. Id. at 12. Appellant was asked various questions,
including whether he ever had sex with E.M. Id. He denied that he did. Id.
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at 15.2 Detective Henry then paused Appellant’s statement from 10:56 a.m.
to 2:56 p.m. Id. During the four-hour break, however, Detective Henry
continued to question Appellant “off-the-record” about various topics,
including the sexual assault of E.M. Id. at 17. Appellant’s statement resumed
at 2:56 p.m., and he was questioned exclusively about E.M.’s assault
allegations until approximately 3:05 p.m. Id. at 20. During that questioning,
Appellant admitted to having oral sex with E.M. See N.T. Trial, 12/19/18, at
153.3 He also admitted that he heard Abdul-Ali tell E.M. not to tell anyone.
Id. at 154.
At that point, another detective, disguised as a DNA lab analyst, entered
the interrogation room and falsely told Appellant that his DNA had been found
at the homicide scene. N.T. Hearing at 20. Detective Henry then paused
Appellant’s statement from 3:35 p.m. until 5:39 p.m. Id. at 23. During that
break, Appellant was again questioned “off the record” about various topics,
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2Detective Henry testified that he questioned Appellant about the sex offenses
against E.M. to establish Appellant’s “relationship with the co-defendant and
also if he knew the [homicide] victim or the victim’s daughter[, E.M.]” Id. at
22.
3 We recognize that in In re L.J., 79 A.3d 1073, 1087 (Pa. 2013), our Supreme
Court held that our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing. Here,
Appellant’s full statement was admitted into evidence at the suppression
hearing. See N.T. Hearing at 31. However, it was not read into the record
during Detective Henry’s testimony in that proceeding, as it was during the
detective’s trial testimony. Because Appellant’s statement is not contained in
the certified record before us on appeal, we refer to Detective Henry’s trial
testimony to discern the contents of Appellant’s statement to police. This does
not violate the rule announced in In re L.J., as the trial court had Appellant’s
full statement before it when ruling on his suppression motion.
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including the sexual assault of E.M. Id. at 23, 25. When the formal statement
resumed at 5:39 p.m., the first questions asked by Detective Henry were
about the sexual offenses alleged by E.M. Id. at 25. Appellant at some point
thereafter admitted that he had vaginal intercourse with E.M., and that he had
attempted to have anal intercourse with her, as well. N.T. Trial, 12/19/18, at
158.
At the close of the suppression hearing, the trial court denied Appellant’s
motion to suppress his statements about the sexual offenses committed
against E.M. Notably, however, the court offered no factual findings, nor any
clear legal determinations. Instead, the court stated only the following:
THE COURT: I’ll be as specific as I can. I’ll deny the motion to
suppress in that Miranda … has taken us so many directions. I
know what I’m looking for as far as [Appellant’s] not being advised
what he’s questioned about. I understand [what] that means. I
guess it’s a pointed issue. When he starts saying someone is given
a statement [and] that they have weighed their rights and want
to speak and take the train down the track. I’m not ready to find
those facts here, … and I deny the motion at this time.
Id. at 37.4
Appellant now contends that the trial court’s ruling to admit his
inculpatory statements was error. He insists that his statements regarding
the sex offenses committed against E.M. were involuntary because the
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4 The judge who presided over the suppression hearing later left the bench
and a different judge presided over the subsequent pre-trial motions and
Appellant’s trial. Thus, in the court’s Rule 1925(a) opinion, it offers no
discussion of this issue, simply referring this Court to the portion of the record
containing the above-quoted ruling by the suppression judge. See TCO at 4
n.2.
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Miranda warnings provided by Detective Henry made no mention of those
offenses and pertained solely to the homicide crime. Additionally, he claims
that the warnings were stale and too far removed from his inculpatory
statements to support their voluntariness. In support of his arguments,
Appellant relies primarily on two cases, Commonwealth v. Riggins, 304
A.2d 473 (Pa. 1973), and Commonwealth v. Wideman, 334 A.2d 594 (Pa.
1975). In Riggins, our Supreme Court explained:
There is no prophylactic rule that a suspect must be re[-]warned
of his constitutional rights each time custodial interrogation is
reviewed. Instead, we must view the totality of circumstances in
each case to determine whether such repeated warnings are
necessary.
Pertinent to such an inquiry are the length of time between the
warnings and the challenged interrogation, whether the
interrogation was conducted at the same place where the
warnings were given, whether the officer who gave the warnings
also conducted the questioning, and whether statements obtained
are materially different from other statements that may have been
made at the time of the warnings.
Riggins, 304 A.2d at 477-78 (quoting Commonwealth v. Bennett, 282 A.2d
276, 280 (Pa. 1971)).
The Riggins Court ultimately held that the police in that case had been
required to re-advise Riggins of his Miranda rights, based on the following
circumstances:
Seventeen hours elapsed between [Riggins’] initial Miranda
advisement and his oral confession; the warnings were given in
the police car, while the interrogation was conducted at the Police
Administration Building in downtown Philadelphia; the officers
who gave the warnings had no further contact with [Riggins] once
he arrived at the Administration Building and the questioning
began…[; and] the oral confession was obviously ‘materially
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different’ from the denials [Riggins] had given, regarding the
robbery and murder, for the 17 hours preceding its elicitation.
Id. at 478.
Analyzing the Bennett factors several years later in Wideman, the
Court again concluded that officers should have re-advised Wideman of his
constitutional rights. There, twelve hours had elapsed between the Miranda
warnings and Wideman’s confession; the warnings and confession occurred in
different rooms of the Police Administration Building; the officers that provided
Wideman’s Miranda warnings were not present when he confessed; there
was a material difference between the statements that Wideman made in the
morning after the Miranda warnings were provided and his confession
provided that evening; and the continuity of the interrogation was broken on
several occasions, including when Wideman was permitted to sleep for 3½
hours. Wideman, 334 A.2d at 599. Accordingly, the Wideman Court held
that Wideman “should have been re[-]advised of his Miranda rights prior to
the interrogation session during which the complained of statement was
elicited.” Id. Because he was not, his confession was inadmissible. Id.
Here, we again stress that the suppression court made no factual
findings or legal determinations regarding the Bennett factors, despite that
Appellant argued that those considerations warranted the suppression of his
statements to police. See Motion to Suppress, 6/28/17, at 3; N.T. Hearing at
32-34. Indeed, the court offered no coherent reason for its decision to deny
Appellant’s suppression motion. After carefully reviewing the record and
pertinent case law, we must conclude that the court erred.
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Initially, from Detective Henry’s testimony, it is clear that two of the
Bennett factors weigh in favor of a conclusion that Appellant did not need to
be re-Mirandized prior to his inculpatory statements: Appellant was provided
Miranda warnings and interrogated in the same room, and Detective Henry
both advised Appellant of his rights and ultimately recorded Appellant’s at-
issue statements. However, other circumstances in this case lead us to
conclude that Appellant should have been re-informed of his constitutional
rights.
First, just over six hours had passed between Appellant’s Miranda
warnings and his first inculpatory statements, made at or after 2:56 p.m.
Over nine hours had elapsed between the warnings and his admissions made
at or after 5:39 p.m. While not as long as the spans of time in Riggins or
Wideman, the time between the warnings and admissions in this case is
nonetheless significant, and longer than other cases where our Supreme Court
has held that re-warning was unnecessary. See Commonwealth v. Jones,
386 A.2d 495, 498 (Pa. 1978) (finding warnings were not stale when an
incriminating statement was given three hours after warnings, warnings were
given in the same room, and the same warning officers conducted the
interview); Commonwealth v. Gray, 374 A.2d 1285, 1289 (Pa. 1977)
(holding that warnings were not stale when given a little over two hours before
the incriminating statement, warnings were given in the same room, and a
statement made just after the warnings did not materially differ from the latter
statement sought to be suppressed); Bennett, 282 A.2d at 280 (deeming
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warnings not stale where they were given just under five hours before the
interrogation, the defendant was only moved a distance of a few miles, and,
while the statement was given to an officer other than the warning officer, it
was substantially similar to the defendant’s earlier statement just after the
warnings were given).
Second, while Appellant initially denied any sexual contact with E.M.
when the interrogation began, he offered a materially different statement six
hours later when he admitted to having oral intercourse with E.M. Then, nine
hours after his initial denial of sex with E.M., he confessed to having vaginal
and attempted anal sex with her.
Third, there are other circumstances in this case that convince us that
the continuity of Appellant’s interrogation was broken and new Miranda
warnings were required. See Commonwealth v. Scott, 752 A.2d 871, 875
(Pa. 2000) (stating that the Bennett factors, “though not mandatory, guide
us in determining whether there has been a ‘clear continuity of interrogation’”)
(citation omitted). For instance, there were lengthy breaks during the taking
of Appellant’s written statement, during which he was questioned ‘off-the-
record’ about ‘various topics,’ including the sexual assault of E.M. and her
father’s murder. In addition, Appellant’s formal statement was interrupted
when an officer, dressed as a lab technician, entered the interrogation room
to falsely inform Appellant that his DNA had been located at the scene of E.M.’s
father’s murder. These breaks in the taking of Appellant’s formal statement
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support that there was no continuity in the interrogation regarding E.M.’s
sexual assault allegations.
Another factor supporting a conclusion that Appellant should have been
re-Mirandized is the fact that the Miranda warnings he was provided
pertained only to the homicide. Detective Henry admitted that Appellant was
never informed he was a suspect in the sexual assault of E.M., or advised of
his constitutional rights as they pertained to those crimes. Nevertheless,
Appellant was specifically questioned about his sexual conduct with E.M.
during his formal statement.
We disagree with the Commonwealth’s position that the homicide and
sexual assault of E.M. were sufficiently similar so as to notify Appellant that
he would likely be questioned about both. This Court has declared that:
The Pennsylvania courts, in interpreting Miranda, have held that,
in order for an accused to exercise his Miranda rights
intelligently, he must have knowledge of the particular
transaction under investigation. This does not mean that the
accused need know the technicalities of the offense or every
conceivable consequence which might flow from a Miranda
waiver, but he does have a right to know of the general nature of
the incident giving rise to the investigation.
Commonwealth v. Brown, 491 A.2d 189, 190–91 (Pa. Super. 1985)
(emphasis added). Here, aside from being serious, violent offenses, the
sexual assault crimes committed against E.M. are not of the same general
nature as the homicide of her father. Moreover, the crimes occurred weeks
apart and in different counties. Specifically, the sexual offenses committed
against E.M. took place in August at Appellant’s home in Philadelphia, while
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the homicide occurred five weeks later in Montgomery County at E.M.’s
father’s home. Based on these differences, we conclude that Appellant’s being
Mirandized regarding the homicide crime was not sufficient to notify him of
his rights regarding the sex offenses committed against E.M.
In sum, based on the totality of the circumstances surrounding
Appellant’s interrogation, we conclude that the Miranda warnings provided to
him were not sufficient to demonstrate the voluntariness of his inculpatory
statements regarding the sexual assault of E.M. Appellant was not informed
that he was being investigated for those crimes, or notified of his constitutional
rights regarding them. Six and nine hours elapsed between the warnings
being provided and his inculpatory statements. Over the course of those
hours, there were lengthy breaks in the taking of Appellant’s statement,
during which the questioning went back and forth between the homicide and
the sexual assault allegations. Appellant’s statements materially changed
from his initially denying any sexual contact with E.M., to his admitting that
he had oral sex with her, to his finally claiming that he had vaginal and
attempted anal intercourse with her. Given the totality of these
circumstances, we cannot conclude that Appellant knowingly and intelligently
waived his constitutional rights and provided voluntary statements to police
regarding the sexual assault of E.M. Therefore, the trial court erred by
denying Appellant’s motion to suppress, and a new trial without the admission
of his inculpatory statements is required.
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In Appellant’s next issue, he contends that the trial court erred in
granting the Commonwealth’s pretrial motion to preclude him from presenting
the alibi evidence from his homicide trial, i.e., the SEPTA surveillance video
and cell location data. According to Appellant, this evidence “indicated that
his confession to being at the scene of the murder was false, unreliable, and
coerced” and would therefore cast doubt on the reliability of his inculpatory
statements regarding the sexual assault of E.M. Appellant’s Brief at 41. The
trial court granted the Commonwealth’s motion to preclude this alibi evidence
for the homicide, explaining that it was not necessary because “the jury had
… been informed that Appellant was acquitted of the murder after presenting
alibi evidence.” TCO at 8 (citing N.T. Trial, 12/19/18, at 160-61, 207).
We need not determine whether the court’s evidentiary ruling was
erroneous, as we are granting Appellant a new trial at which his inculpatory
statements will not be admitted. Therefore, he will not need to admit the at-
issue alibi evidence for the purpose of challenging the veracity of his now-
suppressed statements to police.5
Finally, Appellant challenges the discretionary aspects of the sentence
imposed by the court. Because we are affording Appellant a new trial, his
judgment of sentence is hereby vacated. Therefore, we need not address the
merits of his sentencing challenge.
____________________________________________
5We express no opinion on the admissibility of that evidence for any other
purpose.
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J-S46001-20
Judgement of sentence vacated. Case remanded for a new trial
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2021
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